03/14/2022
New Mexico Supreme Court confirms public's historic right to access the banks and beds of waterways which cross private land.
For over 100 years, New Mexico's Constitution has stated that all waters “belong to the public....” NM Const. Article XVI, Section 2. However, under a law passed in 2015, the Game Commission of the NM Dept. of Game and Fish granted private landowners along the Alamosa, Chama, Pecos, Penasco, and Mimbres rivers "certificates" permitting landowners to restrict the public's use and access to these waterways. The landowners then installed physical barriers to passage along the waterways, including cables, fences, steel barriers, and razor wire across the waterways.
In a ruling announced on March 1, 2022 in Adobe Whitewater Club of New Mexico, et al. v. State Game Commission, Case No. S-1-SC-38195, the NM Supreme Court held that the Game Commission’s issuance of these "certificates" was tantamount to privatization of access to New Mexico rivers and was therefore unconstitutional. The court stated that the "certificates" previously issued to would be voided.
How does this ruling affect landowners with a waterway on their property? Well, New Mexico statute defines a “watercourse” as “any river, creek, arroyo, canyon draw or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water.” Sec. 72-1-1, NMSA 1978. While the Supreme Court’s ruling does not allow the public to trespass across private lands in order to get to the waterways, the ruling makes it clear that private land-owners may not attempt to restrict public access to waterways of any kind by placing obstacles where waterways enter or leave private land. Issuance of the Court’s full written ruling will be forthcoming.